PROVIDENCE — A Superior Court judge has ruled that the Woonsocket Zoning Board of Review violated a developer's due process rights.

By Katie Mulvaney

PROVIDENCE, R.I. — A Superior Court judge has ruled that the Woonsocket Zoning Board of Review failed to give a developer a fair hearing by allowing a board member with business and political connections to an opponent of his housing proposal to vote on the project.

Judge Daniel A. Procaccini found that the board violated developer Gary Fernandes’ due process rights when it determined that board member Allen Rivers did not have a conflict of interest in assessing Fernandes’ proposal. The board narrowly rejected Fernandes’ plan to place 18 residential units at the former St. Francis House property.

In ruling, Procaccini ordered the board to reconsider the application with an alternate member sitting in Rivers’ place.

At issue were comments Rivers made indicating he would reject the project before the board took a vote and his refusal to step aside.

“Rivers’ arrogant and offensive conduct is repugnant to the fundamental principle of judicial impartiality embodied in the due process clause,” Procaccini wrote. “The Zoning Board’s decision finding no conflict of interest and allowing Rivers to participate in and vote at the hearing was not only characterized by an abuse of discretion but rendered the entire proceeding unconstitutional.”

Woonsocket officials met with Fernandes in 2010 to negotiate the purchase of the 167 Blackstone St. property that was previously owned by the Roman Catholic Diocese of Providence. The city struck a deal with the developer in which he would pay reduced taxes through 2020 to help offset costs of bringing the former assisted-living facility up to fire code.

Fernandes sought a variance to build 17 units, which the board rejected. A year later, the board denied a second proposal for 13 units, 5 more than allowed by zoning.

Fernandes built eight units. The board held hearings in July 2012 to assess a third proposal to add 10 more units. Fernandes presented witnesses in support, while James Cournoyer and Roland Michaud spoke against it. Three members voted in support, with Rivers and another member rejecting it. Four “yes” votes were required, and the proposal was denied under the city’s zoning code.

A board member who recused himself, Richard Fagnant, later recounted in a sworn statement that Rivers told him a month before the hearing that he planned to vote against it.

Rivers and Michaud, too, had previously jointly owned property, and Michaud had an option to buy another parcel from Rivers. In addition, Rivers was a political supporter who put up signs for Michaud when he was running for office, the ruling states. Michaud, now a member of the Zoning Board, recently ran for mayor.

Fernandes appealed the board’s denial based, in part, on Rivers’ apparent bias. In November 2012, Superior Court Judge William E. Carnes Jr. sent the decision back to the board for reconsideration of Rivers’ alleged conflict of interest.

The board failed to hold a hearing for almost two months, prompting Fernandes to ask that the board be found in contempt. Procaccini held a hearing in January after which the parties agreed to ask Rivers to step aside.

The next month, the Rhode Island Ethics Commission issued an opinion stating that Rivers was not prohibited by the Code of Ethics from participating in the reconsideration of the proposal “notwithstanding his business associate’s past appearance” in opposition and the possibility that Michaud might object to Fernandes’ proposal again.

The Zoning Board held a hearing in March in which it determined that Rivers did not need to recuse himself. The board again denied Fernandes’ application, leading to his Superior Court appeal.

“The due process clause embodies one of the American judiciary’s most cherished values: the right to an impartial and disinterested tribunal,” Procaccini concluded. He added: “The fundamental principle of the neutral adjudicator has been applied to zoning boards which are ‘vested with substantial measure of quasi-judicial power under the local law regulating the use of land in their jurisdiction.’”

The record shows, the judge said, that Rivers’ statements were “sufficiently grave” to taint the process and undermine the appearance of impartiality. His relationship with Michaud further eroded “the bedrock principle of strict impartiality” required by state Supreme Court precedent.

Rivers should have recused himself to avoid an appearance of impropriety or bias, the judge found.

Lawyers involved in the case continue to meet with Procaccini.

“I’m just shocked. Considering the financial condition of the city, and the financial benefit of Mr. Fernandes’ development to the city, I don’t understand why Mr. Rivers is hell-bent to stop this project when he has a blatant conflict and bias,” said Fernandes’ lawyer, Michael A. Kelly.

The city has made overtures about seeking to vacate the ruling, Kelly said, and “we’re going to oppose them to the ends of the earth.”

Kelly expressed distress, too, that Michaud had become a Zoning Board member after the outset of the case. How can anyone appearing before the board ever be assured that Rivers and Michaud aren’t in lockstep, he asked.

Joseph Carroll, a solicitor for Woonsocket, declined comment because the litigation was continuing. He has been joined in defending the city by former state Supreme Court Justice Robert G. Flanders Jr., Joseph S. Larisa Jr. and Christopher Howe, he said.

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